Provider Liability and Duty to Warn Third Parties in the “Zone of Danger” of Potential Harm by Patient

Kuligoski v. Brattleboro Retreat, No. 14-396, 2016 Vt. LEXIS 106 (Sep. 16, 2016)

Vermont Supreme Court replaces its May 6, 2016 opinion with an amended opinion, which still finds the existence of a duty of mental health care providers to warn a patient’s caregivers of dangers posed by a patient if those caregivers are actively involved in the patient’s treatment plan and are within the “zone of danger” posed by the patient’s violent propensities.

Background: E.R. was involuntarily committed to state mental health facilities and was diagnosed with a schizophreniform disorder before being transferred to Battleboro Retreat. After being discharged from the retreat to the home of his parents, who were his ongoing caregivers, and while undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS), E.R. assaulted his father, Michael Kuligoski. Plaintiffs filed suit against Battleboro Retreat and NKHS for failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted the defendants’ motions to dismiss for failure to state a claim and plaintiffs appealed.

Holding: The Vermont Supreme Court reversed the rulings of the superior court relating to the failure to warn and failure to train claims. However, the court explained that the duty to warn included elements of the failure to train claim and held that there was no independent cause of action for a failure to train. The court also held that a provider has no duty to convey information in violation of HIPAA.

Notable Points:

Duty to warn: The court explained that the duty to warn is narrow and “applies only when a caregiver is actively engaging with the patient's provider in connection with the patient's care or the patient's treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver's ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient's violent propensities.”

§ 43 of the Restatement Third of Tort Law: The court rejected the view that there is a duty to third parties based on the undertaking of another.

Found in DMHL Volume 35, Issue 3